Flexi-time disability claim allowed to proceed despite being late
A tribunal allowed a disabled employee's flexi-time discrimination claim to proceed out of time, but struck out parts of her claim that relied on without-prejudice discussions.
1 min read · Last updated 18 May 2026
Case details
Key facts
- The claimant was a disabled person by reason of her anxiety at the relevant times.
- The flexi-time complaint was presented outside the time limit.
- It was just and equitable to extend time for the flexi-time complaint.
- Paragraphs 36 to 44 of the ET1 were struck out as without prejudice and pre-termination negotiations.
Timeline
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ET1 presented
The claimant presented her claim to the Employment Tribunal.
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First hearing
Hearing before Employment Judge R Brace at Cardiff (CVP) on disability status.
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Judgment on disability status
Employment Judge R Brace issued judgment that the claimant was a disabled person.
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Second hearing
Hearing before Employment Judge Russell remotely by video from Cardiff on strike out and time limit issues.
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Judgment on strike out and time limit
Employment Judge Russell struck out paragraphs 36-44 of the ET1 and extended time for the flexi-time complaint.
The legal issue
The tribunal had to decide whether the claimant's flexi-time discrimination complaint was presented within the legal time limit, and if not, whether it was just and equitable to extend time. It also had to determine whether certain parts of the claim should be struck out because they referred to without-prejudice discussions or pre-termination negotiations.
The outcome
The tribunal ruled that the flexi-time complaint was presented outside the three-month time limit under section 123(1)(a) of the Equality Act 2010. However, it exercised its discretion to extend time under section 123(1)(b) because it was just and equitable to do so. The tribunal also struck out paragraphs 36 to 44 of the claim, as they related to without-prejudice discussions and pre-termination negotiations, making them inadmissible. No compensation was awarded at this stage; the case will proceed to a full hearing on the flexi-time complaint.
Lessons & takeaways
- If you have a disability discrimination claim, you must present it to the tribunal within three months of the act you are complaining about, unless it is just and equitable to extend time.
- Without-prejudice discussions and pre-termination negotiations are generally inadmissible in tribunal claims, so avoid including them in your claim form.
- Representing yourself is possible, but legal advice can help you avoid procedural pitfalls like missing time limits or including privileged material.
- Tribunals have discretion to extend time limits if it is just and equitable, but you should explain why the delay was reasonable.
A procedural win for the claimant, but with limits
This case shows how employment tribunals balance strict time limits against the need to do justice. The claimant, who was found to be disabled due to anxiety, brought a claim about being unable to accrue or take flexi-time. However, she presented that part of her claim after the three-month deadline. The tribunal decided it was just and equitable to allow the claim to proceed, recognising that the delay was not excessive and that the employer would not be unfairly prejudiced.
The without-prejudice trap
A significant part of the claim was struck out because it referred to discussions that were protected by without-prejudice privilege or related to pre-termination negotiations under section 111A of the Employment Rights Act 1996. These rules exist to encourage open settlement talks, but claimants must be careful not to rely on such discussions as evidence of discrimination. The tribunal removed those paragraphs entirely, meaning the claimant cannot use them at the final hearing.
What this means for similar claims
For employees, this case is a reminder to act quickly: the time limit for discrimination claims is short, and only a compelling reason will persuade a tribunal to extend it. For employers, it confirms that without-prejudice discussions remain confidential and cannot be used as evidence unless an exception applies. The flexi-time complaint will now proceed to a full hearing, where the substantive issues will be decided.
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